JUDGMENT 1. - The appellant was indicted before the learned Addl. Sessions Judge, Beawar in Sessions Case No. 52/94 for having committed murder of Moin. He was found guilty and was convicted and sentenced vide Judgment dated July 7, 1995 under section 302 IPC to undergo imprisonment for life and fine Rs. 500/- in default, to further suffer one month imprisonment.Against this judgment of conviction that the present action for filing the appeai has been resorted to by the appellant. 2. The prosecution story, as unfolded during the trial may be summarised thus- Informant Nooruddin @ Noor (PW1) instituted oral report (Ex.P1) with the police station Beawar City on April 2, 1994 at about 9.20 PM. with the averments that his brother Moin had gone outside of his house after taking food. Soon thereafter the informant heard hue and cry and when he alongwith his mother Munni (PW2) went out of their house, they saw the appellant inflicting injuries on the person of Moin with dagger. The informant made attempt to catch hold of the appellant but he fled away leaving behind his shirt, sleepers, Dagger- case and cycle On being asked as to what had happened, Mubin kept mum because he was already dead. 3. The Police Station, Beawar City registered formal FIR bearing No. 74/94 (Ex. P/2) under section 302/34 of the Indian Penal Code and investigation commenced. Necessary memos were drawn, statements of witnesses under section 161 Cr.RC. were recorded, autopsy on the dead body of Moin was conducted, the appellant was arrested and after completion of the investigation, Charge- Sheet was filed. In due course, the case came up for trial before the learned Addl. Sessions Judge, Beawar. Charge under section 302 IPC was framed against the appellant, who denied the charge and Claimed trial. The prosecution examined as many as 18 witnesses in support of its case. In the explanation under section 313 Cr.RC., the appellant Claimed innocence. Two witnesses in defence were examined. The learned trial judge on hearing the final submissions convicted and sentenced the accused appellant as indicated here- in- above. 4. We have heard the rival submissions and scanned the material on record. 5. A look at the Post-mortem Report (Ex.R24) of the deceased Mubin demonstrates that as many as 7 ante-mortem injuries were sustained by him. The learned trial judge on hearing the final submissions convicted and sentenced the accused appellant as indicated here- in- above. 4. We have heard the rival submissions and scanned the material on record. 5. A look at the Post-mortem Report (Ex.R24) of the deceased Mubin demonstrates that as many as 7 ante-mortem injuries were sustained by him. The details of injured parts of the body including measurements of the injuries are as under- (1) Rt. Knee 3 Cm. x 1 Cm. x 1/2 Cm. (2) Chin 1.5 Cm. x 1/2 Cm. x 1/2 Cm. (3) Left I.F. Area 4 Cm. X 2 Cm. Omentum is coming out from wound (4) Left side chest on nipple area 8 Cm. X 5 Cm. X deep upto mediastum (5) Sternal Area 3.5 Cm x 5 Cm. X bone deep (6) Left lower chest wall Ant. 3 Cm X 1.5 Cm. X deep upto Thorax cavity (7) Rt. Ant. Axillary Line Parallel to nipple area 2.5 Cm. x 1/2 Cm. x Bone deep 6. All the injuries were caused by sharp object. The cause of death was due to multiple stab wounds over chests and abdomen leading to injury to lungs and heart. 7. The prosecution examined two eye witnesses Nooruddin (PW1) and Munni (PW2) to prove the guilt against the appellant. Nooruddin is the real brother of the deceased whereas Munni is the mother. In his deposition before the learned trial judge, informant Nooruddin (PW1) stated that he had seen Kesar Khan inflicting injuries on the person of Mubin with Dagger but he could not go to the police station forthwith as his mother suddenly became ill. In his cross examination, he, however, stated that lights of the street were off at the time of incident and when he enquired from Mubin as to what had happened, he was already dead. When he reached near Moin, the appellant and his two companions had already left the place of occurrence. As per the deposition of this witness when Moin left his house, he was accompanied by Vinod Choudhary. 8. Munni (PW2) in her deposition stated that she had seen Kesar Khan inflicting blows with Dagger on the person of Moin. When she and her son Nooruddin reached near Moin, Kesar khan had already left the place of occurrence leaving behind his red shirt and cycle. 8. Munni (PW2) in her deposition stated that she had seen Kesar Khan inflicting blows with Dagger on the person of Moin. When she and her son Nooruddin reached near Moin, Kesar khan had already left the place of occurrence leaving behind his red shirt and cycle. In her cross- examination, she deposed that Moin was accompanied by Vinod Choudhary and there was sufficient light near the place of occurrence. She further stated that when she reached near Moin, Vinod Choudhary was not there and Trilok and Gopi Panwala were sitting on their shops. She could only see the back of the assailants while they were running. 9. From the above discussion, following fact situation emerges- (i) The eye witnesses of the occurrence are near relatives of the deceased. (ii) Testimony of eye witnesses is inconsistent in so far it relates to the issue of visibility. Nooruddin, on the one hand deposed that lights of the street were off; whereas Munni on the other hand stated that there was sufficient light. (iii) After hearing hue and cry, when the alleged eye witnesses went out of their house, they found Moin lying in an injured condition and both or them enquired as to what had happened to him. (iv) Munni (PW2) in the concluding part of her cross examination deposed that she could only see the back of the assailants, while they were running. 10. Although the weapon allegedly used in the offence was recovered at the instance of the appellant and it was sent to F.S.L., but F.S.L. report could not be placed on record. We, therefore, find it difficult to connect the recovery of Dagger with the alleged guilt of the appellant. The testimony of witnesses Nooruddin (PW1) and Munni (PW2) is of a partisan nature and it bristles in most parts with unnaturalness and embellishments and it appears that they had not seen the occurrence. Had they seen the occurrence, they would not have enquired from the deceased as to what had happened to him. We are unable to place reliance on such a weak and unreliable testimony of the ace witnesses of the prosecution. 11. The prosecution also failed to establish that shirt and other articles recovered from the place of occurrence belonged to the appellant and that they were stained with human blood. 12. We are unable to place reliance on such a weak and unreliable testimony of the ace witnesses of the prosecution. 11. The prosecution also failed to establish that shirt and other articles recovered from the place of occurrence belonged to the appellant and that they were stained with human blood. 12. In view of what we have discussed here- in- above, we are satisfied that the prosecution has failed to establish the charge under section 302 IPC against the accused appellant beyond reasonable doubt and the learned trial judge committed illegality in convicting the appellant for the said charge. 13. Consequently the appeal stands allowed, the conviction of the accused appellant under section 302 IPC is set- aside and the appellant stands acquitted from the charge under section 302 Indian Penal Code The appellant, who is in jail, shall be released forthwith, if not required in any other case.Appeal allowed. *******